Rajasthan High Court - Jaipur
Pravindra Urf Leela And Anr vs State Of Rajasthan Through P P on 10 October, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:27198-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 641/2012
1. Pravindra @ Leela, S/o Mool Chand, R/o Tivala, Police Station
Charkhi Dadri, District Bhiwani (Harayana)
2. Kuldeep Sihag, S/o Baldev Singh, R/o Ward No.12, Siwani,
Police Station Siwani, District Bhiwani, (Haryana)
(At present in Central Jail, Bikaner)
----Accused/Appellants
Versus
State Of Rajasthan Through PP
----Respondent
Connected With D.B. Criminal Appeal No. 579/2012 Raghav Sahu @ Raghu @ Somveer, S/o Mahendra Singh, R/o Shyahdwa, Police Station Mangali District Bhiwani, At present D.C. Colony, near B.T.M. Mill, Bhiwani, Hariyana (At present confined at Central Jail, Jaipur)
----Accused/Appellant Versus State Of Rajasthan Through Pp.
----Respondent For Appellant(s) : Mr. Sudhir Jain, amicus curiae, assisted by Mr. Parth Sharma, Mr. Parth Vashistha for Appellant No.1 in CRLA No.641/2012 Mr. Vishal Pareek for Mr. Deepak Chauhan for Appellant No.2 in CRLA No.641/2012 Mr. Sudhir Jain, amicus curiae assisted by Mr. Parth Sharma & Mr. Parth Vashistha in CRLA No.579/2012 For State : Mr. Javed Choudhary, Addl. GA HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment Reserved on :: 04/10/2023 Pronounced on :: 10/10/2023 (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (2 of 12) [CRLA-641/2012] (Per Hon'ble Pankaj Bhandari, J)
1. Accused/appellants have preferred these Criminal Appeals aggrieved by judgment of conviction and order of sentence dated 11.04.2012 passed by Addl. Sessions Judge, Khetri, whereby appellants have been convicted for offence under Sections 332, 353, 336 R/w 34, 307/34, 302/34 of IPC and 3/25 of Arms Act and sentenced as under:
(i) For offence under Section 332 IPC:- three years rigorous imprisonment and fine of Rs.500/- each and in default of payment of fine, to further undergo one month additional simple imprisonment to each accused appellants.
(ii) For offence under Section 353 IPC:- two years rigorous imprisonment and fine of Rs.300/- each and in default of payment of fine, to further undergo 15 days additional simple imprisonment to each accused appellants.
(iii) For offence under Section 336 R/w 34 IPC:- three months simple imprisonment and fine of Rs.100/-
each and in default of payment of fine, to further undergo three days additional simple imprisonment to each accused appellants.
(iv) For offence under Section 307/34 IPC:- ten years rigorous imprisonment and fine of Rs.3000/- each and in default of payment of fine, to further undergo, six months additional simple imprisonment to each accused appellants.
(v) For offence under Section 302/34 IPC:- life imprisonment and fine of Rs.5000/- each and in default of payment of fine, to further undergo, six months additional simple imprisonment to each accused appellants (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (3 of 12) [CRLA-641/2012]
(vi) For offence under Section 3/25 Arms Act:- three years rigorous imprisonment and fine of Rs.500/- each and in default of non-payment of fine, to further undergo, one month additional simple imprisonment to each accused appellants.
All the sentences were directed to run concurrently.
2. Succinctly stated the facts of the case are that on 09.06.2010, the complainant- Udai Singh (PW-3), Sub Inspector of Police, Surajgarh Police Station lodged a written report (Ex. P-
7) at Police Station Buhana, District Jhunjhunu with regard to an incident alleged to have taken place on the same day wherein it was stated that at around 11:15 am, a telephonic information was received regarding four armed robbers looting and firing in Bank of Baroda and that they are moving towards Kajla village in a Swift car. He then intimated higher authorities and also contacted Constable- Chandrabhan who confirmed his presence at village Kajla. He then directed Constable- Chandrabhan to barricade the road with the help of villagers in order to stop the robbers. Upon reaching the spot along with other police personnel, he saw Chandrabhan along with Ghanshyam Singh, Ummed Singh, Himmat Singh present there and they had one accused in their hold. He also saw that Chandrabhan had sustained bullet injury on his shoulder. Chandrabhan then informed complainant- Udai Singh (PW-3) that as he was barricading the area, a Swift car which was being followed by some villagers in private vehicles arrived at the place. The robbers were trying to flee, so Chandrabhan threw a stone on the windshield which frightened the driver of the car. He then opened the car door, took the accused- Parvinder (driver) out (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (4 of 12) [CRLA-641/2012] of the car and pushed him to the ground. It was then that other accused fired at him from the back but he along with the villagers still held onto the accused Parvinder. The other accused then kept firing, fled the scene and some villagers followed them. A desi katta was found on the person of accused- Parvinder. Chandrabhan informed that the other remaining accused had gone towards Kajla ki bans. ASI- Hanuman Singh, Incharge, P.S. Bahuna, then reached the spot and they sent injured Chandrabhan to Chiwada hospital and accused- Parvinder to Surajgarh Police Station. Thereafter, they along of the some villagers started moving towards Kajla ki bans, where the remaining accused had fled. After a distance, they found some set of clothes and shoes on the ground. They then found the other accused running naked and on asked to stop, the accused started to fire towards them. The police then returned the fire in self-defence and fired near their leg. One accused received a bullet wound on his thigh while the other received three bullet wounds on his hand, near the belt and on the back. The two accused identified themselves as Pravin and Kuldeep and some weapons were also recovered from their person. They then started moving towards Surajgarh in order to get medical assistance for the injured accused. Upon travelling just some distance, they met SHO, Police Station- Pilani and some villagers who had caught accused- Raghav. SHO, Pilani informed that he had caught the accused while he was trying to flee and they also recovered weapon and Rs.2,54,500/- on his person. The accused Pravin, Kuldeep and Raghav were then taken to hospital (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (5 of 12) [CRLA-641/2012] Surajgarh for treatment. The complainant was then informed that constable Chnadrabhan has died of his injuries during treatment.
3. On the basis of the above mentioned report, police registered a criminal case bearing FIR No.141/2010 (Ex. P-8) at 6:15 pm on 9.06.2010 for offence under Sections 332, 353, 336, 302 and 307 IPC, Section 3/25 of Arms Act against the accused appellants. The police after due investigation filed charge-sheet against the accused appellants. The learned Trial Court after committal of the case, framed charges against the accused- appellants for offence under Sections 332, 353, 336 read with Section 34, 307 in alternate Section 307/34, 302/34 of IPC and Section 3/25 of Arms Act. The accused appellants denied the charges and sought trial. Upon which, 29 witnesses were examined, and 52 documents were exhibited on behalf of the prosecution. Explanation of the accused respondent was recorded under Section 313 of Cr.P.C. In defence, 5 documents were exhibited. Learned Trial Court after hearing the final arguments for both the parties, has convicted and sentenced the accused appellants as stated hereinabove. Aggrieved by which, the present appeals have been filed.
4. It is contended by counsel for the accused-appellants that the fact that the appellants were involved in the bank robbery was not established by producing any bank officer. It is contended that as per the prosecution version, appellants were arrested from the spot, however, from the arrest memos, it is revealed that they were arrested after four days of the incident from Police Station (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (6 of 12) [CRLA-641/2012] Buhana. There was no dock identification and none of the witnesses have identified the accused. It is also contended that the accused were not known to the witnesses, still no test identification parade was got conducted. It is contended that as per the prosecution case, the deceased was a constable who received gunshot injury. The bullet recovered from the body of the deceased was handed over to the police team, however, the same was not sent to FSL to ascertain the caliber of the bullet. It is also contended that as per the prosecution case, there was cross-firing and in cross-firing, one of the accused- Praveen died. The possibility that the constable also sustained gunshot wound in police firing cannot be ruled out. It is further contended that Shishpal Singh- Armorer (PW-28), who inspected the arms, has not deposed that the bullet recovered from the dead body of Chandrabhan was fired from the weapons which were seized from the appellants at the spot.
5. It is contended that from accused- Pravindra, a country made pistol and a live cartridge of size 7.85 mm were seized vide Ex.P-4; from accused- Kuldeep, a pistol and an empty cartridge & three live cartridge of size 8 mm were seized vide Ex.P-5 and from accused- Raghav, a pistol and live cartridges of size 8 mm were seized vide Ex.P-1. To establish that the weapons alleged to have been recovered from the appellants were used and the deceased sustained gunshot wound from the weapons of the appellants, it was mandatory for the prosecution to establish that the caliber of bullet which was recovered from the body of the deceased was matching with the weapons alleged to have been used by the (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (7 of 12) [CRLA-641/2012] appellants. It is also contended that as per the prosecution version, the accused sustained injuries and were taken to the hospital, however, no medical report has been produced to establish the same. It is contended that as per the prosecution, the accused were arrested on 09.06.2010, however, recovery of vehicle, clothes and shoes were made on 10.06.2010 No explanation has been given for the delayed recovery.
6. Learned counsel appearing for the State has vehemently opposed the appeals. It is contended that two FIRs were lodged for the same incident. One pertaining to bank robbery which is Ex.P-41 and second is the present F.I.R. (Ex.P-8). Accused were separately tried for bank robbery case and were convicted in that case vide judgment and sentence dated 23.08.2013. It is contended that the accused were taken in custody when they were trying to flee after bank robbery. Cash was recovered from them. The vehicle was also seized from which also, cash was recovered. Since, accused were convicted in the bank robbery case, it is clear that they were involved in bank robbery and were fleeing from the bank when they were intercepted and nabbed. It is also contended that since accused were arrested from the spot, so test identification parade was not required. It is further contended that there are eye witnesses who have witnessed the exchange of fire and there is no reason to disbelieve them and the learned Trial Court has not erred in placing reliance on the evidence adduced by the prosecution.
7. We have considered the contentions and have perused the evidence.
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8. To establish the case, prosecution has to establish that there was bank robbery, that the accused were fleeing in a vehicle, that they were stopped by constable- Chandrabhan and that one of them fired at him, that when accused were trying to flee away from the place, they were chased by the police team and thereafter, two of the accused- Pravin & Kuldeep were arrested and that finally the third party arrested accused- Raghav. Prosecution has to prove that Chandrabhan who sustained gunshot wound died due to firing by the appellants. Prosecution is also to establish that the accused-appellants were arrested and the persons who were produced before the Court are same who were arrested by the police.
9. The fact that the bank robbery was committed by the present appellants and that the amount which was recovered from them, was the same which was robbed from the bank, could have been established by the prosecution by producing some bank officer. Surprisingly, no bank officer was produced before the Court. The judgment of conviction in bank robbery case was also not produced before the Court. It is pertinent to note that none of the eye witnesses have identified the accused-appellants in Court. Admittedly, none of the witnesses were knowing the accused prior to the date of incident. If they were arrested from the spot in presence of these witnesses, there ought to have been an arrest memo, however, there are no arrest memos on the date of occurrence i.e. 09.06.2010 and arrest of accused- Pravindra & Raghav is shown on 13.06.2010, whereas arrest of accused- Kuldeep is shown on 22.06.2010. All the accused were shown to be arrested from Police Station Buhana.
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10. The contention of learned Addl. Government Advocate that they were only taken in custody in the present case and were arrested in the bank robbery case is devoid of any force for the very reason that the arrest memo of bank robbery case was not produced and exhibited before the Court. Further, it is not mentioned in the arrest memos Ex.P.33, 34 and 35 that they have been arrested from some other case. This is indeed a serious lacuna and as to why they were not arrested from the spot, when the firearms were seized from them from the place of occurrence is beyond comprehension.
11. It is also pertinent to note that the present FIR No.141/2010 (Ex.P-8) was registered at 6:15 pm on 09.06.2010. All the recovery memos of the weapon of offence bear the said FIR number and they have been prepared prior to 6:15 pm. Thus, these documents appear to be manipulated by the police. The contention of learned Additional Govt. Advocate that since the present FIR was not registered and the accused were arrested in the earlier FIR, they were only taken in custody in this case cannot be sustained for the very reason that all the recoveries have been made in the present FIR. There was no reason for not apprehending the accused-appellants in the present FIR and since the arrest memo of the earlier FIR was not adduced before the Court, this Court cannot arrive at the conclusion that the accused were only taken in custody and were not arrested, when from their possession, firearms and bank robbery amount were stated to be recovered. There is further no justification for not seizing the vehicle, the clothes and shoes of the accused on the same day. (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (10 of 12) [CRLA-641/2012]
12. So far as death of constable- Chandrabhan is concerned, as per Ex.P.25, a bullet was recovered from the body of Chandrabhan on 09.06.2010 itself and the same was handed over to the SHO PS Chirawa. No explanation has come forth from Additional Govt. Advocate as to why this bullet was not sent to the FSL to ascertain its caliber and why it was not sent to the armorer to establish that the same was fired from the weapons which have been seized from the accused-appellants. It is also important to note that there is no recovery memo prepared of bullet recovered from the body of the deceased. The only evidence which could have connected the accused-appellants with the murder of Chandrabhan was the bullet which was recovered from his body. Prosecution has utterly failed to connect the weapon of offence with the bullet recovered from the body of Chandrabhan. One of the accused is stated to have been killed in the firing by the police. It has come in evidence that Chandrabhan was also in civil uniform and the possibility that the police team mistook him to be one of the robbers and fired at him cannot be ruled out. It is an admitted case of the prosecution that there was cross-firing. It was for the prosecution to establish that the bullet which was recovered from the body of Chandrabhan was not one, which was fired by the police. This could have been established only if the recovered bullet would have been sent to FSL and the bullet used by the police party also should have been sent to the FSL to ascertain the caliber of the bullet fired by the police team. Thus, the prosecution has utterly failed to establish that the deceased sustained gunshot wound which was fired by the accused- appellants.
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13. The contention of learned Additional Govt. Advocate that there is evidence to this effect that the appellants fired at the deceased, lapses on the part of the prosecution in not ascertaining the caliber of the bullet recovered from the body of the deceased and connecting the weapon of offence with the alleged offence would not have any adverse impact on the prosecution case, cannot be sustained for the very reason that there were no arrest memos prepared at the place of occurrence; the accused were not known to the witnesses, still they were not subjected to test identification parade; the witnesses have not identified the accused-appellants in dock identification and in absence of dock identification, it cannot be said that they were nabbed by the police on 09.06.2010, when the arrest memos mention some other date. Prosecution has thus utterly failed to establish the alleged offence against the accused-appellants. The lapses in the present case goes to the root of the matter and cannot be taken lightly by the Court, hence, this Court deems it proper to acquit the accused-appellants by giving them benefit of doubt.
14. Appeals filed by the appellants deserves to be and are accordingly, allowed. Judgment of conviction and order of sentence dated 11.04.2012 passed by Addl. Sessions Judge, Khetri is quashed and set aside. The appellants are acquitted of all the charges levelled against them. Appellants are in jail, they be set at liberty forthwith, if not required in any other case or for any other purpose.
15. Appellants are directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Downloaded on 11/11/2023 at 08:42:23 PM) [2023:RJ-JP:27198-DB] (12 of 12) [CRLA-641/2012] (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before Hon'ble the Apex Court. The bail bonds will be effective for a period of six months.
16. Record of the trial Court be returned back forthwith alongwith certified copy of this order.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
CHANDAN /
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